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Mt. Azizunnissa Vs. Siraj HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All507; 152Ind.Cas.146
AppellantMt. Azizunnissa
RespondentSiraj HusaIn and ors.
Excerpt:
- - mohammad hasan bad two sons, mahmud jan and mohammad jan. there was a clause in it that if any of those persons to whom allowances were to be given should take to bad habits or make himself or herself independent of the mutwalli, the latter would be at liberty to stop the allowance. they looked up to him and he enjoyed their confidence. this being so, the burden lay {upon the defendants under section 111, evidence act, to show that in fact the transactions in question had been made in good faith and had not been induced by undue influence. according to the terms of the draft wakfnama mohammad husain had been anxious to do the best he could for all the members of his family, but under the sapurdnama of 23rd september 1917, he gave nothing to any single member of his family with the.....collister, j.1. this is a plaintiff's appeal against a decree of the subordinate judge of ghazipur dismissing the plaintiff's suit for possession of a half share in certain zamindari and house property which had originally belonged to her paternal grand-father, mohammad husain. the plaintiff claimed as an heir of the said mohammad husain. the relationship between the parties will appear from the pedigree which is set forth in the judgment of the court below. one ghulam sarwar had two sons, mohammad husain and mohammad hasan. mohammad hasan married a lady named mt. wilayati begam; and after the death of mohammad hasan this same lady was taken in marriage by mohammad husain. mohammad hasan bad two sons, mahmud jan and mohammad jan. mahmud jan had four wives, one of whom was mt. sughra.....
Judgment:

Collister, J.

1. This is a plaintiff's appeal against a decree of the Subordinate Judge of Ghazipur dismissing the plaintiff's suit for possession of a half share in certain zamindari and house property which had originally belonged to her paternal grand-father, Mohammad Husain. The plaintiff claimed as an heir of the said Mohammad Husain. The relationship between the parties will appear from the pedigree which is set forth in the judgment of the Court below. One Ghulam Sarwar had two sons, Mohammad Husain and Mohammad Hasan. Mohammad Hasan married a lady named Mt. Wilayati Begam; and after the death of Mohammad Hasan this same lady was taken in marriage by Mohammad Husain. Mohammad Hasan bad two sons, Mahmud Jan and Mohammad Jan. Mahmud Jan had four wives, one of whom was Mt. Sughra Begam, and by her he had a son Mumtaz Husain, who is the central figure in this case. Mohammad Husain had three sons, Zain-ul-Abdin, Amir Husain and Ahmad Husain. Zain-ul-Abdin died in 1911, leaving a widow, by name, Mt. Shahanshah Bahu. By her he had a daughter, who is the plaintiff in this suit and whose name is Mt. Aziz-un.nissa. She is also known and is more often referred to in this suit as Begam Jani. Amir Husain died without issue in 1914. Ahmad Husain who was a Deputy Collector died on 20th July 1916, leaving two widows, Mt. Sarfarazi Begam and Mt. Wazarat Begam. Mohammad Husain, himself died at Luoknow, on 14th February 1919. It is in evidence that he had owned considerable property. Some he had inherited through Mt. Wilayati Begam and to some he had succeeded on the death of his three sons, while the rest was ancestral. The zamindari property was in the districts of Jaunpur, Benares and Ghazipur.

2. On the death of Ahmad Husain on 20th July 1916, there was no adult male member of the family except a youth named, Mohammad Yusuf, who is the husband of the plaintiff. Mohammad Husain himself was at least 100 years old. This fact is proved by a registered deed which was executed by him as long ago as 1832. He was admittedly blind in 1916 and was so hard of hearing that one had to speak to him at the top of one's voice. After the death of Ahmad Husain, Mumtaz Husain, who was a practising barrister at Lucknow came to Allahabad and took the affairs of the family into his hands. The first thing he did was to draw up a wakf-nama which was to be executed by Mohammad Husain and the ladies of the family in respect of the whole property. In that wakfnama he himself was to be the mutwalli and he had the widest possible powers to spend the income at his discretion in the maintenance of the members of the family. There was a clause in it that if any of those persons to whom allowances were to be given should take to bad habits or make himself or herself independent of the mutwalli, the latter would be at liberty to stop the allowance. The only exception was to be in respect of Mohammad Husain himself. This draft wakfnama was not accepted by the ladies as they saw that under it Mumtaz Husain would have absolute power over them. After this, Mohammad Husain, drafted two agreements of reference to arbitration. One was dated 24th September 1916, and the other was dated 27th September 1916. Under the former, the alleged disputes between the two widows of Ahmad Husain on the one side and Mohammad Husain on the other in respect of dower debt, were to be referred to arbitration, and under the latter document an alleged dispute between the said widows and the plaintiff was to be the subject of arbitration. Mumtaz Husain himself was appointed one of the three arbitrators the other two being Syed Nasir Uddin and Syed Amir Uddin. On 28th September 1916, Mumtaz Husain and the other two arbitrators delivered an award. According to the award, all the property which Ahmad Husain had left was to go to his two widows in lieu of their dower debts and right of inheritance and the claims between the widows and the plaintiff were to be set off against each other. Two days later, that is on 30th September 1916, Mohammad Husain obtained a sale-deed from each of the two widows of Ahmad Husain in respect of the entire property of their husband which had been given to them under the award. On 2nd October 1916, Mohammad Husain executed a sale-deed in favour of Mumtaz Husain for an alleged consideration of Rs. 6,500. Rs. 500 were paid in cash before the Sub-Registrar and a cheque for the balance was given to Mohammad Husain. This sale-deed covered Mohammad Husain's zamindari property in the Jaunpur District. On the 15th October, this sale-deed and also the two sale-deeds which had been executed by the widows of Mohammad Husain were registered.

3. On 24th October 1916, Mohammad Husain executed a deed of gift in respect of the whole of his remaining property, except some insignificant zamindari share in the Ghazipur District. The value of the gifted property is alleged in the deed to be Rs. 10,000. The document was registered that same day. A few days later Mumtaz Husain took Mohammad Husain, with him to his own house at Lucknow, leaving the latter's grand daughter and the widows of Ahmad Husain to fend for themselves. On 23rd September 1917. Mohammad Husain executed a sapurdnama in which he explained what he had-done with the sum of Rs. 500 paid to him at the time of registration and bow he had spent certain further sums and in which he gave detailed instructions as to bow the sum of Rs. 4,800, the balance of the cheque for Rs. 6,000 was to be applied. All these sums were to be disbursed by Mumtaz Husain. Mohammad Husain admittedly lived in the house of Mumtaz Husain at Lucknow until his death on 14th February 1919. The plaintiffs case is that Mohammad Husain was blind, deaf and in his dotage in 1916.

4. There are two aspects of her case. She pleads on the one band that the deed of sale and the deed of gift were executed by Mohammad Husain by reason of undue influence which had been exercised upon him by Mumtaz Husain and that the said deeds are therefore voidable and not binding upon her. On the other hand, she pleads that Mohammad Husain was, at the time of the execution of the said deeds, not of sound mind within the meaning of Section 12, Contract Act, and the transfers are therefore void.

5. We will first deal with the question of undue influence. We do not propose to go into this matter in any very great detail because, for reasons which will appear later on we are of the opinion that the suit, on the basis of undue influence is barred by Article 91 of the Limitation Act. There can be no doubt that after the death of Ahmad Husain all the members of this family placed the utmost reliance upon Mumtaz Husain. They looked up to him and he enjoyed their confidence. This appears from certain letters which were written by the plaintiff's husband Mohammad Yusuf to Mumtaz Husain and also by the ad-missions of Syed Nasir Uddin, a witness for the defendants. There can be little doubt and the fact is not seriously disputed that Mumtaz Husain was in a position to dominate the will of Mohammad Husain. This being so, the burden lay {upon the defendants under Section 111, Evidence Act, to show that in fact the transactions in question had been made in good faith and had not been induced by undue influence. From the facts which we have already set forth, it is clear that Mumtaz Husain, within the short period of throe months, possessed himself of practically the whole of this valuable property belonging to Mohammad Husain a blind old man of over 100 years of age. The profits of the property which was sold on 2nd October 1916, amounted to Rs. 1,171 per annum. The sale consideration was Rs. 6,500 only and there can be little doubt that it was totally inadequate. The reasons which are given in the written statement as having necessitated the Sale of this property are that Mohammad Husain was in need of money for his awn maintenance and for the maintenance of various members of his family. The sale deed itself recites no reasons for its execution and the fact that a deed of gift in respect of the rest of the property was executed a few days later shows that the reasons given in the written statement cannot be correct. According to the terms of the draft wakfnama Mohammad Husain had been anxious to do the best he could for all the members of his family, but under the sapurdnama of 23rd September 1917, he gave nothing to any single member of his family with the exception of a gift of Rs. 800 to Mt. Sarfarazi Begam. Evidence has been given for the defendants that Mohammad Yusuf was a wastrel and that on that account Mohamad Husain was unwilling to give him anything; but in the sapurdnama it is recited that Mohammad Yusuf had now become a man of property, the suggestion being that he and his wife were well off and did not need any of Mohammad Husain's property. It is also recited in it that, at the time when Mohammad Husain was about to leave Allahabad for Luck-now, Mohammad Yusuf and the plaintiff and the latter's mother tried to keep him back and he had to obtain help from the police. This is given as another reason for disinheriting the plaintiff, who was his own grand-daughter and his only direct descendant. It will be observed, however that no questions were put to the plaintiff or to Mohammad Yusuf in cross-examination in respect to this allegation that Mohammad Husain had to seek the aid of the police. It also appears from the evidence of a defence witness, namely, Sayed Nasir Uddin, that the widows actually wept when Mohammad Husain left. We think that we have said enough to show that the plaintiff had made out a strong prima facie case in respect to her allegations of undue influence, but we have not called upon counsel for the respondents to reply, in view of our decision that a suit on the basis of undue influence would be barred by limitation.

6. This question of limitation depends on whether Article 91, Limitation Act, is or is not applicable to the present suit. We will first deal with the rulings to which Dr. Katju on behalf of the plaintiff has referred us. The first case is that of Shikhar Ghand v. Dulputty (1880) 5 Cal. 363. In that case, the adopted son of a quondam minor sued to have certain transfers set aside on the ground of fraud and to obtain possession. It was held that the suit fell under Article 145, Limitation Act. That case dates back to 1879. The next case to which we have been referred is that of Boo Jinatboo v. Shanagar (1887) 11 Bom. 78. In that case it was held that Article 92 had no application to a suit to set aside a mortgage bond on the ground of fraud and to recover possession, It was held that that Article only applied when a bare declaration was sought. That is a case of 1886. In the case of Abdul Rahim v. Kirparam (192) 16 Bom. 186, it was held that Articles 91,92 and 93, Limitation Act only apply to a suit which is brought expressly to cancel a deed. A similar view was taken in Sundaram v. Sithammal (1893) 16 Mad. 311, where the Court held that Art, 91 Limitation Act was not applicable to suits in which the substantial relief claimed was the recovery of land. The above are the cases which directly support the plaintiff. Dr. Katju has also referred us to certain other cases which however are in our opinion distinguishable. He has referred us to the Privy Council case of Kalyandappa v. Chanbasappa A.I.R. 1924 P.C. 137. In that case it was held that Article 141, Limitation Act, was applicable to a suit by a reversioner for possession of immovable property on the death of a Hindu female even if it were necessary to decide in the suit whether an adoption was or was not valid.

7. It seems to us that that case can be distinguished from the case now before us on two grounds. In the first place, it was held there that the adoption was void and not voidable. In the second place, it was a suit by a reversioner and there, fore it is clear that he was not claiming through the widow who had made the adoption. In the present case, the plaintiff is claiming directly through the person who made the transfers which are the object of attack in this suit. Another case which has been referred to us is Narsagouda v. Chawagouda A.I.R. 1918 Bom. 188, but in that case also the sale deed was void and not voidable. We have also been referred to the Privy Council case of Petherpermal v. Muniandy (1908) 85 Cal. 551, but that case also is distinguishable, because it was there held that the transaction in question was a sham. Another case, which has been referred to by the lower Court in its judgment, is that of Bageshra v. Sheonath A.I.R. 1916 All. 339. That was a case of this High Court, We are of opinion that the observations from the judgment in that case which have been quoted by the learned Subordinate Judge are more in favour of the defendants than of the plaintiff. The reason for the decision given in that case was that the plaintiff there had a transfer in* his favour which was prior to the defendant's transfer and so he was entitled to ignore the latter.

8. We have been referred to a large number of authorities on behalf of the defendants. We will deal with those which appear to us to be most appropriate to the present case. In the case of Hasan Ali v. Nazo (1889) 11 All. 456, in the year 1889 it was held by this Court where a nephew sued for his share of inheritance and to set aside a gift made by his uncle on the ground that the latter was 'very old and out-of his senses,' Article 91, Limitation Act, applied. In Deo Singh v. Ram Dulaiya : AIR1932All63 , the plaintiff, who had sued to recover possession of a village in 1925, alleged that a deed of gift which set out that she had given this village to her three brothers in 1909, had been procured from her by fraud and undue influence. It was held that the plaintiff would have been entitled to have the instrument cancelled or set aside immediately the undue influence was withdrawn and that no action having been brought within three years, the suit was barred under Article 91. The Court remarked that it was impossible for an action for possession to succeed unless the plaintiff could first succeed in having the deed of gift set aside. In that case Hasan Ali v. Nazo (1889) 11 All. 456, was referred to. The case Raja Rajeswara v. Arunachalam Chettiar A.I.R. 1916 Mad. 350, directly supports the defence. In that case, the view which had been-taken in Sundaram v. Sithammal (1893) 16 Mad. 311, was dissented from. There are four Privy Council cases to which our attention has been drawn on behalf of the defendants. The first is that of Jagadamba v. Dakhina (1886) 13 Cal. 308. In that case, the plaintiffs as collateral heirs of a childless Hindu questioned certain adoptions which purported to have been made by the latter's widows in pursuance of an authority from him, such adoptions having been followed by continuous possession and having been recognized in formal instruments, proceedings and decrees to which the plaintiffs were parties.

9. It was held that the suits were barred under Article 129, Lim. Act, 1871. The next case is that of Janki Kunwar v. Ajit Singh (1888) 15 Cal. 58. In that case a husband and a wife sued for restoration of certain property on payment of consideration on the ground of fraud and undue influence it was held by their Lordships of the Privy Council that Article 91, Lim. Act, was applicable. The ground on which the learned Judges in Raja Rajeswara v. Arunachalam Chettiar A.I.R. 1916 Mad. 350, dissented from the view taken in Sundaram v. Sithammal (1893) 16 Mad. 311, was that it was at variance with this Privy Council ruling. In the case of Mohesh Narain v. Taruak Nath (1893) 20 Cal. 487, an adopted son sued to obtain certain property. The defendant set up a prior adoption and it was held by their Lordships of the Privy Council that the suit was one to set aside an adoption under Article 129, Lim. Act, 1871. The last Privy Council case cited on behalf of the defendants is that of Malkarjan v. Narhari (1901) 25 Bom. 337. That was a suit for redemption of a mortgage. Property had been sold at a judicial auction after notice had been wrongly served on a person who was not the legal representative of the judgment-debtor's estate. Their Lordships held that Article 12, giving a limitation of one year only, was applicable. The view put forward on behalf of the defendants is also supported by other rulings, namely, Banku Behari v. Krishto Gobindo (1903) 30 Cal. 433, Rameshwar Prasad v. Lachmi Prasad (1904) 31 Cal. 111, Harihar v. Dasarathi (1906) 33 Cal. 257, Shrinivas v. Hanmanth (1900) 24 Bom. 260 and Hassu v. Bazida A.I.R. 1933 Lah. 399. It is clear from the cases which we have cited that conflicting views have been taken in India. But it seems to us that the view which has consistently been taken by this Court and the trend of the more recent authorities of other High Courts and the judgments of their Lordships of the Privy Council support the view that when a person sues to obtain possession of property which has bean transferred by the person through whom he claims, the suit must be brought within the period allowed by Article 91, Lim. Act, so long as-the transfer is voidable and not ab initio void. When the transfer has been made by some person who had no title to make it and the transfer is therefore viod, then the claim to have such transfer set aside will be merely ancillary or incidental to the main claim, which will be one for possession, but when the plaintiff's own predecessor has made a transfer, which in voidable and not void, the claim to have such transfer set aside cannot be regarded as merely ancillary to the plaintiff's claim for possession. The transfers in the pre-sent suit so far as the plea of undue influence is concerned are voidable under Section 19-A, Contract Act, The plaintiff cannot evade the limitation prescribed by Article 91 by merely framing his suit as though it were a suit for possession and nothing else.

10. A plea has been taken by Dr. Katju on behalf of the plaintiff that since under Section 126, T.P. Act, a person can revoke a gift in any of the cases (save want of failure of consideration) in which if it were a contract it might be rescinded therefore a gift can be revoked in the same manner in which a contract can be rescinded. Section 66, Contract Act, provides for the rescinding of contracts. But it will be ob. served that Section 126, T.P. Act, does not lay down that a gift can be revoked in the same manner as a contract can be rescinded. The right of revocation which is given by Section 126, T.P. Act, appears to us to be a right which is personal to the donor. We cannot think the Legislature intended that the successor of a donor could revoke a gift made by the latter by merely giving him notice. If this were the correct view then Article 91, Lim. Act, would have no meaning so far as gifts are concerned. As regards the sale-deed, Dr. Katju, bases a similar argument on Section 86, Trusts Act. In our opinion, the reasons which we have given for not accepting his argument in respect of the gift apply with equal force in respect of the sale-deed. Dr. Katju has been unable to quote any authority in support of his plea. We are of opinion that there is no force in it.

11. Our view therefore is that this suit, so far as the plea of undue influence is concerned, is barred by Article 91, Limitation Act. It is clear from the statements of the plaintiff and her bus hand that they knew about the transfers at the time when Mohammad Husain left Allahabad. They were aware of the influence which Mumfaz Husain exercised, and it may reasonably be assumed that his influence over Mohammad Husain continued until the latter's death. This last named event would be one of the facts entitling the plaintiff to have the documents set aside within the meaning of the last column of Article 91, Lim. Act; limitation would therefore begin to run from the date of Mohammad Husain's death.

12. The alternative plea of the plaintiff is that Mohammad Husain, at the time when he executed the deed of sale and the deed of gift, was not capable of understanding their contents and was not able to form a rational judgment as regards the effect which the said transfers would have upon his property This plea is based on Section 12, Contract Act. The onus on this point was primarily on the plaintiff and it has to be seen whether she has discharged it. It is not denied that Mohammad Husain was of sound mind up to the year 1914; it is alleged on behalf of the plaintiff that it was in or after that year that his mental faculties broke down. As we have already shown, Mohammad Husain was a man of at least 100 years of age in 1916. He was also blind and was hard of hearing. There is oral evidence on both sides, but the most important evidence is to be found in certain documents. The plaintiff's counsel relies strongly upon a statement which was made by Mohammad Husain when he was examined on commission on 27th August 1916 in a certain suit. He was asked what relationship Mt. Farzana Khanam had with Mahmud Jan, who officiated as priest at the marriage of Mt. Farzana Khanam and what amount was fixed as her dower. Mohammad Husain replied to each of these questions that he did not remember. Mt. Farzana Khanam was one of the wives of Mohammad Husain's nephew, Mahmud Jan, and so it Is argued that, since Mohammad Husain must have known all about Mt. Farzana Khanam, his reply that he did not remember, was clearly indicative of vacuity of mind. In the same statement Mohammad Husain said that he did not know Mt. Surgha Khanam, who was another wife of Mahmud Jan. It appears however that in that suit Mt. Farzana Khanam was claiming her dower debt and it is an admitted fact that she and Mt. Sugbra Begam are sisters. It is also admitted that two sisters cannot under the Mahomedan law be married at the same time to the same man. It is therefore argued on behalf of the defendants that Mt Farzana Khanam could not have succeeded in that suit without showing that Mt. Sughra Begam had been divorced and it is suggested on behalf of the defendants that Mohammad Husain affected forgetfulness because he did not want a family scandal to be made public. Some support is given to the suggestion that Mt. Sughra Begam had been divorced by the evidence of Mirza Shamsuddin, a witness for the defendants. He says:

The relation of husband and wife had not continued between Mahmud Jan and Mumtaz Husain's mother (i.e., Mt. Sughra Begam) up to the last. Perhaps she was divorced by Mahmud Jan. I do not know the reason of the divorce.

13. If the statement which Mohammad Husain made is examined, it will be seen that he was able to understand all the questions put to him. He gave his name, his father's name, his sect, his age and his occupation and he was able to take the oath. The evidence was taken on com. mission by a vakil named Beni Bahadur. The latter made a note that the witness was blind and very old, but that is all he noted; he wrote nothing to show or to suggest that Mohammad Husain was unable to understand questions which were put to him and was not a competent witness. Neither party to that suit appears to have taken any objection as regards Mohammad Husain's mental capacity at the time when he was being examined; and the very fact that a commission was issued for his examination shows that he was considered to be a competent witness. On the whole, we are of opinion that this piece of evidence supports the defendants rather than the plaintiff. The transfers which were made by Mohammad Husain were registered. The sub-registrar's endorsement shows in each case that he admitted execution. At the registration of the sale-deed, the sub-registrar noted that the executant was very much advanced in age, but that he was in full possession of his senses. A similar remark was made by the sub-registrar when the deed of gift was registered. These two documents were registered at Allahabad. When the sapurdnama was registered at Lucknow, the sub-registrar endorsed the following remark:

On account of his being blind, the document was read over and explained to the person completing the document in my presence and he admitted the contents of the documents. On 24th May 1916 Mohammad Husain executed a power of attorney. The document was not compulsorily registrable, but it was registered, and the sub registrar noted that the executant admitted execution and completion of the document.

14. It will be observed that the power of attorney was in favour of his son Ahmad Husain among other persons and it seems unlikely that Ahmed Husain, who was a Deputy Collector, would have been a party to a fraudulent execution by a person who did not understand what he was living. The agreement of arbitration dated 24th September 1916 was also registered, although that document too was not compulsorily registrable. In that case, the sub-registrar noted that Mohammad Husain, though advanced in age, was in his proper senses and that he answered each and every question. If Mohammad Husain had in fact been so obviously mentally incapable as the plaintiff makes out it would have been a most unwise thing to produce him before the sub-registrar for the registration of documents which did not require to be registered. No suggestion has been made against the honesty of the sub-registrar either at Allahabad or at Lucknow. He was not called and examined and we cannot presume that he made his endorsements otherwise than honestly and in good faith. The next piece of documentary evidence which supports the defendants is contained in a letter which was written by Mohammad Yusuf to Mumtaz Husain on or about 14th September 1916. The body of the letter goes to show the degree of ascendancy which Mohammad Husain had acquired over Mohammad Yusuf : but there is a significant postscript which throws light about the mental condition of Mohammad Husain. That post-script runs as follows:

Yesterday 'dada abba' (i.e. Mohammad Husain) called me and said : 'Why has not Mumtaz Husain come? No income is received form the ilaqas. Where from the expenses will be met? You should go yourself to the ilaqa and make management and collections and money.' I told him the cause of your not coming, whereupon he said : 'I will not write anything to those persons (the widows of the deceased). If they live with me I will have regard for their maintenance. If they want to take the share of Deputy Sahib and to file a suit for dower debt, they may take the property which belongs to him. It is a portion of Boka Sarai, etc., and they have nothing to do with me.

15. Mohammad Yusuf says that he wrote this post-script at the dictation of one Afzal Husain, who is a brother of Mumtaz Husain. We think we may fairly say that this is an absurd explanation, for there is no apparent reason why he should have written such things in this postscript at the dictation of someone else. This post-script shows that Mohammad Husain was able to take an interest in things and to give orders about his estate. There is another letter from Mohammad Yusuf to Mumtaz Husain dated 16th September 1916 and in that letter also he refers to the orders which he had received from Mohammad Husain. That letter also shows that their karinda, a man named Gajadhar, considered himself to be under the orders of Mohammad Husain, for he had told Mohammad Yusuf that he would not render accounts to him unless Mohammad Husain directed him to do so. These letters support the case of the defendants and show that Mohammad Husain was taking an intelligent interest in his affairs and in his zamindari in the year 1916. The very fact that undue influence has been pleaded and very vehemently argued in this case suggests that Mohammad Husain had a mind which could be influenced. As regards the oral evidence, the learned Subordinate Judge has discussed and analysed the statements of the witnesses and has arrived at the conclusion that the witnesses who have been examined on behalf of the plaintiff are not worthy of credit. We have examined the evidence with care and we are of opinion that the conclusion to which he has arrived is correct. We would not otherwise place very much value on the oral evidence which has been given by the defendants, but it is supported by the documents to which we have made reference and we are therefore of opinion that it must be accepted in preference to the evidence which has been given for the plaintiff. We accordingly affirm the finding of the trial Court that Mohammad Hussain was not of unsound mind at the time when he executed the deed of sale and the deed of gift of 1916. A plea which has been taken on behalf of the plaintiff is that the deed of gift is void for the fact that Mohammad Husain had no property left at Allahabad at the time of its registration. In the sale-deed of 7th October 1916, it was stated that among other property Mohammad Husain was transferring a share in the house in Allahabad and that that was the share which he had inherited from his wife Mt. Wilayati Begam. At the place in the document where the boundaries are given, it is stated that the share in the house which was being sold was a three pies share. In the deed of gift Mohammad Husain purported to transfer a one pie share in the same house which he had inherited from his son Amir Husain. It is argued on behalf of the plaintiff that the language used in the sale-deed was intended to cover Mohammad Husain's entire share in the house in question. We are not prepared to accept this argument when it is expressly stated in the sale-deed that a three pies share inherited from Mt. Wilayati Begam was being transferred and it is expressly stated in the deed of gift that a one pie share inherited from Amir Husain was being transferred. No evidence has been called to show that in point of fact Mohammad Husain did not own a four pie share in this house. We agree with the view which the Court below has taken on this point.

16. Another point taken on behalf of the plaintiff is that the deed of gift is invalid because it is not proved to have been attested as required by law. There is a rubkar on the record, paper No. 301-A, dated 22nd July 1929, in which counsel for both parties agreed that all registered documents should be admitted in evidence without proof of 'tahrir wa takmil.' In view of that clear agreement between the parties it seems to us that it was not necessary for the defendants to call any of the attesting witnesses; but actually they did call one such witness, who proved due attestation so far as he was concerned. In accordance with a recent Full Bench ruling of this High Court in Lachman Singh v. Surendra Bahadur : AIR1932All527 , it was unnecessary for the defendants to prove anything further in view of the fact that the validity of the deed of gift I had not been specifically denied on the ground that it had not been attested in the manner required by law. Even if the rubkar referred to did not cover the deed of gift, we consider that the defendants have proved all that is necessary for proving the validity of the said deed of gift. The last plea taken on behalf of the plaintiff is that the sale-deed is void for want of consideration. The sapurdnama of 23rd September 1917, certainly shows that Mohammad Husain himself got very little out of the consideration and there are many suspicious circumstances about the various alleged payments which are referred to therein; but the fact remains that Rs. 500 and a cheque for Rs. 6,000 were handed over to him at the time of registration. Whatever Mohammad Husain may have done with the money afterwards, we do not think it can be held that there was no consideration for the sale. There remains a very small property in the Ghazipur District. This property is admittedly in the possession of a. lessee. The plaintiff alleges that the lessee has for many years been paying the rent to Mumtaz Husain and his heirs and the lessee herself stated this in her written statement. The allegation is denied by the defendants. There is no evidence either way but Mr. Peare Lal Banerji, who appears for the defendants, admits that the plaintiff is entitled to-proprietary possession of this property and he has no objection to a decree being passed to that effect. There is no proof that the plaintiff is entitled to mesne profits. The result of our finding is that we allow this appeal to this extent only that we decree the plaintiff's claim for proprietary possession in respect of items 8 to 14, both inclusive of list C of the property attached to the plaint. In other respects this appeal is dismissed. The defendants will get their costs from the plaintiff.


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